Think about it: Expelling elected representatives from office

There is no doubt that the law in Israel on the issue of qualifications to run in elections is extreme.

Both the House of Commons in the UK and the Knesset currently have on their agendas bills dealing with the ability to expel members from office before their formal term has ended. However, that is where the similarity begins and ends.

In the UK the bill that is being debated concerns Recall, which involves the ability of voters to remove an MP, and hold early elections in their constituency. It should be noted that such a procedure is only possible in systems where there are direct elections for MPs, but especially single-member constituencies as is the case in the UK.

In the UK the issue has been on the agenda since 2009, when the rather nasty “expenses scandal” broke, involving revelations on some of the scandalous items for which British MPs, who do not live regularly in London and its environs, were found to have requested reimbursement on account of expenses incurred for accommodation in London, and which were approved by the House of Commons administration. Whereas in Israel items MKs purchase with the funds they can be reimbursed for in connection with “contact with the public,” which have included espresso machines, have raised some eyebrows, in the UK pornographic films and having a moat cleaned were among the items listed.

Israeli MKs are but babes in this sphere compared to some of their British counterparts.

The reason all three major parties in the UK decided to seek a way of dealing more harshly with MPs found to have acted scandalously was that MPs can be forced out of parliament in this situation only if they have received a prison sentence of at least one year, which meant that there was no way to remove an MP found to have acted scandalously, but whose offense did not warrant a prison sentence, if he himself did not decide to resign. The current bill was brought by the government, and the main idea behind it is to give the public a say in such matters, and thus try to tackle the problem of public mistrust in Parliament (Israel is not the only country where the public does not trust its house of representatives).

In Israel the circumstances are completely different.

First of all, recall is irrelevant because of the electoral system. Secondly, in Israel there is a list of grounds to prevent candidates from running in elections, which does not exist anywhere else in the world, and which some MKs from the Right would like to turn into pretexts for expulsion of serving MKs.

According to article 7a(a) of the Basic Law: the Knesset, the grounds for preventing candidates from running include: “(1) Negation of the existence of the State of Israel as a Jewish and democratic state; (2) Incitement to racism; (3) Support for an armed struggle by an enemy state or of a terrorist organization, against the State of Israel.”

It should be noted that once elected, if an MK speaks or acts in a manner that contravenes any item on this list, or supports an armed struggle of an enemy state or acts of terrorism “against Jews or Arabs due to their being Jews or Arabs, in Israel or abroad” (article 1a(1) of the MKs Immunity Law), immunity will not apply, and the MK can be prosecuted.

However, the breach of none of the above mentioned pretexts constitutes automatic grounds for expelling an MK, even though some of them are considered offenses under the Penal Code and the Prevention of Terrorism Order, and may lead to the removal of an MK if he receives a prison sentence, and the court has declared that the offense for which the prison sentence was granted involves moral turpitude. Today, the Knesset plenum itself has no power of expulsion.

In the past there have been several Private Members’ bills consisting of amendments to the Basic Law: the Knesset, which stipulated that an MK who negated Israel’s existence as a Jewish and democratic state shall be removed from office by a decision of the Knesset plenum. None of these bills got beyond preliminary reading.

Now there is a bill (again an amendment to the Basic Law: the Knesset), submitted by the chairman of the Constitution, Law and Justice Committee, David Rotem, together with another 27 MKs, which calls for the expulsion of any MK who supports armed conflict against the State of Israel, by a vote of 61 (of the 120) MKs. This bill has been nicknamed “the Zoabi bill” since its impetus was MK Haneen Zoabi and her many scandalous statements.

It is believed that this bill has better chances of being enacted than the previous ones, and on the face of it is certainly justifiable that a person who supports the armed struggle of a foreign state or a terrorist organization against Israel and its citizens should not be able to serve as an MK. However, granting the Knesset plenum, with all the political agendas and prejudices (including racism) of its members, the power of expulsion by an absolute majority (the prime minister has suggested that the majority should be of at least 70 MKS), rather than leaving it exclusively to a court of law, which is supposedly neutral and moderate in its considerations, is problematic.

There is no denying that in the past the High Court of Justice has been especially lenient in its rulings related to articles 7a(a) and 1a(1), so that both Arab MKs who advocate Israel turning into a “state of all its citizens” or demonstrate understanding for Israel’s enemies, and Jewish MKs who are overtly racist, have been allowed to run in elections, or claim immunity. However, handing over the initial power of decision to the Plenum is wrong, even though the expelled MKs in question will presumably still have the right to appeal to the court.

The problem is that it is not clear how much power will remain in the hands of the High Court of Justice to revoke a decision of the Knesset, especially since several right-wing MKs have called for the curtailment of the court’s power to overturn decisions of the Knesset plenum, including the enactment of certain laws.

But to return to the British House of Commons. The whole basis of the law in Israel, which enabled the enactment of articles 7a(a) and 1a(1) in the first place, is totally foreign to the British system, or that of all other truly democratic states for that matter. The only basis for expelling an MP in the UK is a substantial prison sentence, acceptance of certain paid positions that would disqualify the MP from running in the first place, bankruptcy and election-related offenses. In other countries similar rules apply. The opinions of individual MPs do not come to play, unless the parties they belong to are disqualified (in those countries where parties can be disqualified) on grounds of undermining the democratic system etc.

There is no doubt that the law in Israel on the issue of qualifications to run in elections is extreme, though one cannot deny that the basic situation in Israel is extreme, both in terms of what some Arab MKs and Jewish MKs allow themselves to say and do, and in terms of the existential danger to Israel’s existence as a Jewish state, and to its democratic system. However, one sometimes gets the impression that the excessive legislation on all the related issues – the current Basic Law: Israel the Nation State of the Jewish People included – is exaggerated, and liable to aggravate rather than alleviate the situation.
The writer is a retired Knesset employee.

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